' MUHAMMAD QASIM KHAN, J.---Through this petition, the petitioners (Arif and Razzaq, sons of Shameer), seek post arrest bail in a case arising out of F.I.R. No,238 dated 8-7-2011 under section 365-B, P.P.C. Registered on the complaint of Zafar Iqbal son of Muhammad Yar, at Police Station Saddar Kamalia, District Toba Tek Singh.
2, Briefly the case of the prosecution case as set up in the F.I.R. Is that, on 17-6-2011 at 2-00 (noon)
Mst. Zakia Bibi daughter of Naik Muhammad came to see the complainant's daughters namely Mst.
Kalsoom Bibi and Mst. Zakia Bibi and requested that as there was some work at her home, therefore, complainant's daughters may be allowed to go, for which the complainant agreed, thus, she took both the daughters of the complainant with her. As her daughters did not-return till evening, the complainant inquired about them, on the way, Ghulam Ali son of Allah Ditta and Muhammad Yasin son of Allah Yar met him and on inquiry by the complainant they told that accused persons namely Arif, Razzaq, Nazir Muhammad, Shoukat Ali, Azhar. Mst. Zakia Bibi. Hasnain and two unknown persons were forcibly taking her daughters on gun points, in two un-numbered white colour Cars, towards Cheechawatni Morr. The complainant therefore, alleged that accused had abducted her daughters for the purposes of commission of zina.
3. It is argued by learned counsel for the petitioners that they have falsely been involved in this case by the complainant due to his mala fide and ulterior motives, otherwise, neither any such occurrence ever took place nor the petitioners participated in the commission of alleged crime.
The learned counsel further argued that there is inordinate and unexplained delay of about twenty one days in the lodgment of the F.I.R. The learned counsel further contended that the story as set up in the F.I.R. Is not only improbable but also ridiculous, as according to the learned counsel Muhammad Arif and Muhammad Razzaq both are real brothers, similarly, Shoukat Ali and Azhar are real brothers, as such, it is highly unnatural that brothers would jointly involve themselves in such an offence. The learned counsel argued that as a matter of fact Mst. Kalsoom Bibi daughter of the complainant had herself left her house and contracted marriage with Shoukat Ali son of Nazir Muhammad (co-accused of the petitioners), and as the complainant had the apprehension that Mst. Kalsoom Bibi may not support his case, therefore, he with mala fide intention mentioned his other daughter Mst. Zakia Bibi as second victim of the occurrence, on the basis of self created story.
The learned counsel further urged that medico legal certificate of alleged victim Mst. Zakia Bibi was conducted after twenty seven days of her alleged abduction, even otherwise, medico legal certificate does not lend corroboration to the prosecution case as no mark of violence could be found on private parts of her body. It has strenuously been argued that fact of nikah between Mst.
Kalsoom Bibi has been admitted by the said lady herself and she had also filed a writ petition, wherein, she totally refuted the contents of the F.I.R., admitted her valid and wilful nikah with Shoukat Ali and sought quashment of the F.I.R. It has further been contended by the learned counsel that during investigation the case of the prosecution was found to be incorrect and a cancellation report was submitted but the same was not agreed by the learned Ilaqa Magistrate.
Lastly, argued that petitioners are behind the bars, after completion of investigation the report under section 173, Cr.P.C. Has been submitted but there is no progress in the trial, therefore, petitioners may be released on bail.
4. The learned Deputy Prosecutor-General assisted by learned counsel for the complainant opposed this bail application and argued that petitioners are nominated in the F.I.R. With a role of forcibly abducting two young daughters of the complainant and subjecting them to Zina Bil Jabr, as such, the persons with such a serious allegation of immoral act, are not entitled for any leniency at this stage. The learned counsel for the complainant argued with vigor that the Investigating Officer had not properly investigated the case and even otherwise, since the cancellation report has been disagreed by the learned Ilaqa Magistrate, the petitioners cannot be extended benefit on the basis of findings of the Investigating Officer and opinion of the Investigating Officer even otherwise, is not binding on the court. The learned counsel further argued that although Mst.
Kalsoom Bibi is not supporting the prosecution case, but Mst. Zakia Bibi another victim of the same occurrence is fully implicating the petitioners in the commission of the offence and even, the statement of Mst. Zakia Bibi alone is sufficient to record conviction against the accused persons.
The learned counsel for the complainant concluded, his arguments by contending that since report under section 173 Cr.P.C. Has been submitted the petitioners may prove their innocence during the trial, and for the present they are not entitled for the concession of bail.
5. I have considered the arguments of learned counsel for the parties at full length and perused the available record with their able assistance.
6. There is no doubt that in the F.I.R. Serious allegations have been levelled against the accused persons and the accused persons have also been nominated in the F.I.R. With their full addresses and joint roles. Firstly, it has been observed by this Court that according to the F.I.R. The alleged occurrence took place on 17-6-2011 and the complainant on the same day was told by the witnesses that his daughters were seen being abducted by specific accused persons on gun point in two white colour unnumbered cars. In such a situation, when the complainant himself knew that his daughters were taken away by Mst. Zakia Bibi daughter of Naik Muhammad to her house and subsequently the names of other accused persons had also been told to him by the witnesses, there was no reason left for the complainant to have still kept on searching for his daughters for about twenty one days, without informing the police and getting police assistance. With such a background, prima facie this delay cast serious doubts about the veracity of the complainant.
7. I am in agreement with the argument of learned counsel for the petitioners that it is quite unnatural in our society that two real brothers would join themselves to commit such an immoral offence. Furthermore, a copy of Nikah Nama entered between Mst. Kalsoom Bibi and Shoukat Ali (cited as one of the accused) has been placed on the file and this nikah nama so far remains unquestioned by the complainant party. At the same time, this court has observed that Mst.
Kalsoom Bibi not only refuted the prosecution case before the police during the course of investigation, she also filed a writ petition before this Court, wherein, she while admitting her wilful nikah with Shoukat Ali, categorically stated that no such occurrence ever took place. It also could not lie denied by the prosecution that during investigation the case was found to be false, hereupon, cancellation report was submitted, although the same was disagreed by the learned Ilaqa Magistrate. In this respect a report by the senior police officer i.e, ASP/SDPO has been brought on the record which clarifies that Mst. Kalsoom Bibi had voluntarily contracted marriage with Shoukat Ali and due to that grudge false case was got lodged by the complainant. This report is also part of the record and could not be controverted by the complainant side.
8. Although Mst. Kalsoom Bibi is totally denying the prosecution case, but Mst. Zakia Bibi still sticks to her stance and she while making statement before the police under section 161, Cr.P.C. Has fully implicated the accused persons including the present petitioners in the commission of the offence.
There is also no cavil to the proposition that statement of this alleged victim alone, may be sufficient to record conviction and sentence against the accused persons, if it otherwise, finds support from other incriminating material. Without giving my in-depth analysis about the statement Mst. Zakia Bibi, the alleged victim recorded before the police or its evidentiary value, it may be observed here that statement of Mst. Zakia (alleged abductee/victim) is absolutely silent as to where she remained during the period of her abduction, she does not disclose where she was left by the accused persons, how she reached the police station and what was the name of the police station. In the absence of such necessary details and non-existence of marks of violence on the body of Mst. Zakia, the involvement of the petitioner in the case, requires further probe.
9. In this case, there are two prosecution witnesses. One Mst. Zakia Bibi and second Mst. Kalsoom.
Mst. Kalsoom Bibi is totally throwing out the prosecution case in her statement recorded under section 161, Cr.PC. And she categorically denied that none has abducted her nor Mst Zakia Bibi was abducted by the accused nominated in the F.I.R. She further stated that she contracted Nikah with one Shaukat as per her freewill. On the other side, Mst. Zakia Bibi levelled allegation of abduction and zina against the petitioner and others and fully supported the prosecution story. As prosecution itself alleged the abduction of Mst. Kalsoom bibi and she categorically denied the allegation levelled against the petitioners and other co-accused; hence, these two statements are when juxta-posed prima facie, makes out the case against the petitioners doubtful, requiring further inquiry into the matter and benefit of doubt, how so minor, has to be extended to the accused persons, even at bail stage. The petitioners are behind the bars, further detention of the petitioners would definitely not serve any useful purpose for the prosecution, as even otherwise, nothing is to be recovered from them. As cumulative effect of all above discussion, this petition is allowed and petitioners are admitted to post arrest bail on their furnishing bail bonds in the sum of Rs,200,000 each with two sureties each in the like amount B to the satisfaction of learned trial court.
10. Before parting with this order, it is made clear that whatever has been observed above is purely a tentative assessm ent of the material available before this Court and any of the above observation shall not prejudice the case of either side at any subsequent stage or proceedings.